offences listed in §§ 74a and 120 of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and referenced, in a general manner, by § 24(3) BNDG in conjunction with § 20(1) first and second sentence BVerfSchG can be classified as particularly serious offences. The same applies to the openly-worded provision on data
sharing, according to which any other offence may provide grounds for such sharing because of its aims or the offender’s motive alone. Moreover, the provision does
not determine the required threshold for data sharing in a sufficiently specific manner
(see paras. 213 et seq., 220 et seq. as well as 227 and 228 above). In this respect,
the legislator must set out prerequisites which require that there be indications that a
specific danger may emerge (cf. BVerfGE 141, 220 <271 et seq. para. 111 et seq.>)
or facts which provide sufficient grounds for suspicion.
c) § 24(2) first sentence BNDG in conjunction with § 19(4) BVerfSchG, which governs data sharing with “other” – mainly private – bodies, does not satisfy the requirements of Art. 10(1) GG in every respect. Yet the provision does not lack specificity,
nor is the protection of legal interests it aims to achieve objectionable. The reference
to the “protection of the free democratic basic order, the existence and security of the
Federation or of a Land” and to “the guarantee of the security of vital facilities or facilities that must be defended pursuant to § 1(4) of the Security Clearance Check Act
(Sicherheitsüberprüfungsgesetz)” is unambiguous in the context of the understanding of these terms in other areas and refers to legal interests of particular weight.
Again, however, it is doubtful whether the multi-level chain of references in the provision satisfies the requirement of legal clarity (see para. 213 et seq. above). In any
case, a threshold for data sharing is lacking (see paras. 216 et seq. and 222 above).
d) § 24(2) first sentence BNDG in conjunction with § 19(2) BVerfSchG is also unconstitutional. This provision allows information to be shared with NATO troops stationed in Germany; it refers to Art. 3 of the Agreement to Supplement the Agreement
between the Parties to the North Atlantic Treaty regarding the Status of their Forces
with respect to Foreign Forces stationed in the Federal Republic of Germany of 3 August 1959 (BGBl 1961 II p. 1218). The provision lacks the necessary legal clarity and
specificity (see paras. 137 et seq. and 213 et seq. above). Its three-part chain of references refers to an international treaty provision, which in itself merely provides a
general framework for cooperation in a broad and open manner. It cannot be ascertained from that chain of references with sufficient clarity and specificity for what purpose information may be shared. Moreover, the provision does not limit data sharing
to the protection of legal interests of sufficient weight, nor does it provide for thresholds for data sharing (see para. 220 et seq. above). Making the permissibility of data
sharing contingent on its “necessity” is not sufficient.
e) Finally, § 24(2) first sentence BNDG in conjunction with § 19(3) BVerfSchG,
which governs the sharing of data with foreign public bodies, does not satisfy the
constitutional requirements in several respects.
The provision does not contain a sufficiently precise determination of the authorities